Doc 47 OCR extract - part 3: GOVERNMENT'S OMNIBUS RESPONSE TO DEFENDANT MANGIAPANE'S PRE-TRIAL MOTIONS
E. The Defendant's Motion for Discovery of the Grand Jury Minutes Should be Denied
The defendant's motion (D.I. 39) seeks discovery of the entirety of the grand jury minutes resulting in the instant indictment. The government will comply with its obligations to provide the defendant, at an appropriate time, with those portions of the grand jury transcripts that must be produced under Fed. R. Crim. P. 16, the Jencks Act, and/or Brady/Giglio. To that extent, the defendant's motion should be denied as moot. To the extent that the defendant seeks grand jury minutes beyond these obligations, his motion should be denied for the reasons set forth in section II.D, supra, and those set forth below.
The secrecy of grand jury proceedings is well-established. See United States v. R. Enterprises, Inc., 498 U.S. 292, 299 (1991) ("grand jury proceedings are subject to strict secrecy requirements").[6] These protections are now codified in Federal Rule of Criminal Procedure 6(e) and extend beyond the grand jury materials themselves to bar the disclosure of all materials that relate to or affecting grand jury proceedings. Fed. R. Crim. P. 6(e); In re Grand Jury Subpoena, 103 F.3d 234, 237 (2d Cir. 1996).
[6]See also United States v. Mechanik, 475 U.S. 66, 74 (1986) (O'Connor, J., concurring) (grand jury secrecy a "strictly enforced tradition"); Douglas Oil Co. of Cal. v. Petrol Stops Northwest, 441 U.S. 211, 218 (1979) ("We consistently have recognized that the proper functioning of our grand jury system depends on the secrecy of grand jury proceedings."); In re Impounded, 241 F.3d 308, 316 (3d Cir. 2001) ("The institutional independence and secrecy of the grand jury has been a hallmark of criminal indictments for over three centuries."); United States v. Boffa, 513 F. Supp. 444, 494 (D. Del. 1980) ("The rule preserving the confidentiality of grand jury proceedings first emerged in the 17th century and has remained an integral part of our criminal justice system.").
Rule 6(e) provides narrow exceptions to the secrecy requirements and allows disclosure only in limited circumstances. As the defendant's motion properly concedes, before the Court can order disclosure of grand jury materials, the party seeking disclosure must present a "particularized need" that outweighs the public interest in grand jury secrecy. See e.a., United States v. Educational Development Network Corp., 884 F.2d 737, 741-43 (3d Cir. 1989) (upholding district court denial of access to grand jury materials); United States v. Mariani, 7 F. Supp. 2d 556, 565-68 (M.D. Pa. 1998) (no requirement to disclose grand jury instructions regarding perjury charges where no flaw apparent on face of indictment itself); United States v. Winchester, 407 F. Supp. 261, 277-78 (D. Del. 1975) (denying motion for disclosure so defendant could learn if grand jury read indictment or relied on prosecutor's summary of charges). As the Supreme Court has stated, "[The] 'indispensable secrecy of grand jury proceedings' must not be broken except where there is a compelling necessity. There are instances when that need will outweigh the countervailing policy. But they must be shown with particularity." United States v. Procter & Gamble Co., 356 U.S. 677, 682 (1958) (internal citation omitted).
The defendant principally seeks disclosure in this case pursuant to Rule 6(e)(3)(E)(ii). Under that statute, the Court is permitted, but not required, to order disclosure "at the request of a defendant who shows that a ground may exist to dismiss the indictment because of a matter that occurred before the grand jury." Disclosure is not automatic, however, and case law construing the rule places a substantial burden on the defendant to establish that grounds may exist for dismissal of the case, and that the grand jury materials are necessary for the court to evaluate the allegations. A defendant seeking the production of grand jury records must do more than make general unsubstantiated or speculative allegations of impropriety to prevail under Rule 6(e)(3)(E)(ii). See United States v. Ferreboeuf, 632 F.2d 832, 835 (9th Cir. 1980); United States v. Harbin, 585 F.2d 904, 907 (8th Cir. 1978); United States v. Edelson, 581 F.2d 1290, 1291 (7th Cir. 1979); United States v. Budzanoski, 462 F.2d 443, 454 (3d Cir. 1972). A bare allegation of irregularity will not suffice. United States v. Naegele, 474 F. Supp.2d 9, 10 (D.D.C. 2007); United States v. Broyles, 37 F.3d 1314, 1318 (8th Cir. 1994); United States v. Warren, 16 F.3d 247, 253 (8th Cir. 1994).
The defendant also seeks disclosure based on Rule 6(e)(3)(E)(I), which provides for disclosure preliminarily to or in connection with a judicial proceeding. This clause permits use of grand jury materials in connection with some identifiable litigation. See United States v. Baggot, 463 U.S. 476, 480 (1983). The same "particularized need" standard applies to this provision. United States v. Sells Eng'g, 463 U.S. 418, 444-45 (1983). Disclosure under this provision is limited to only that material for which the particularized need is shown. Douglas Oil v. Petrol Stops Nw., 441 U.S. 211, 222 (1979). Disclosure under this prong is not permitted under a mere showing of relevance, nor for general discovery. See generally, United States v. Procter & Gamble, 356 U.S. 677 (1958).
In the instant case, defendant utterly fails to meet his burden of identifying a "particularized need" for disclosure of the grand jury materials he requests. His argument is, in essence, that because he is charged with conspiracy offenses and most of the alleged overt acts do not name him, the grand jury "got it wrong." Motion at 4. He cites a number of the paragraphs of the indictment which refer to overt acts performed by his alleged co-conspirators and asserts, without foundations that it is "probable" that the grand jury attributed "intentions" to Mangiapane based on acts by others. See. e.g., Motion at 3.
The defendant's motion does not set forth a particularized showing that grounds may exist to dismiss the indictment. It is well established, moreover, that there is a presumption of regularity attached to grand jury proceedings. See, e.g., Mechanik., 475 U.S. at 75 (O'Connor, J., concurring) ("The grand jury proceeding is accorded a presumption of regularity, which generally may be dispelled only upon particularized proof of irregularities in the grand jury process."); see also In re Grand Jury Proceedings, 486 F.2d 85, 92 (3d Cir. 1973); United States v. Serafini, 7 F. Supp. 2d 529, 546 (M.D. Pa. 1998); Boffa, 557 F. Supp. at 316. As the party questioning the procedure before the grand jury, defendant has the burden of showing some irregularity and demonstrating that the irregularity resulted in prejudice. In re Grand Jury Proceedings, 486 F.2d at 92; United States v. Bunty, 617 F. Supp. 2d 359 (E.D.Pa. 2008). The conclusory allegations raised by the defendant's motion do not meet this standard. This is particularly so, given that the government must establish only that one overt act was performed by any member of the conspiracy; the government need not prove that the defendant himself committed an overt act. See, e.g., Third Circuit Model Jury Instruction 6.18.371F; United States v. Nelson, 852 F.2d 706, 713 (3d Cir. 1988 ); United States v. Kapp, 781 F.2d 1008, 1012 (3d Cir. 1986). Moreover, these acts need not themselves have been illegal. See Third Circuit Model Jury Instruction 6.18.371F.
The defendant merely speculates as to his belief that the grand jury reached an erroneous conclusion in indicting him. As such, his efforts to obtain grand jury information represent no more than a fishing expedition. Boffa, 513 F. Supp. at 496. His motion is of a kind consistently rejected by courts. See, e.g., United States v. Coplin, 156 Fed. Appx. 492, 494 (3d Cir. 2005); United States v. Weingold, 69 Fed. Appx. 575, 578-79 (3d Cir. 2003); United States v. Bunty, 2008 WL 2371211 at * 10 (E.D. Pa. June 10, 2008) (defendant failed to meet heavy burden justifying disclosure where offered only "unsupported beliefs and conjectures") (internal quotation omitted); cf. United States v. Boffa, 557 F. Supp. 306, 316 (D. Del. 1983) (denying motion to dismiss indictment and for discovery of grand jury testimony where "allegations are not based upon any factual showing of grand jury abuse, but is simply based on speculation and suspicion").[7]
Defendant's vague and conjectural assertions do not rise even close to the level of the compelling and particularized reasons required to justify invading the secrecy of grand jury proceedings. Moreover, the fact that the government will provide grand jury transcripts as required by Brady/Giglio, the Jencks Act, and Rule 16 renders moot any claim that the defendant has for grand jury materials under Rule 6(e)(3)(E)(I). Accordingly, his motion to order the production of grand jury minutes should be denied. See United States v. Quinto, 264 Fed. Appx. 800, 802-03 (1 Ph Cir. Feb. 5, 2008) (rejecting defendant's claim for grand jury materials under Rule 6(e)(3)(E)(I) premised on unsubstantiated allegations of grand jury error).
[7] Once a party has articulated a particularized need for disclosure, the court must then balance that need against a continuing need for secrecy. Only where the moving party demonstrates that a need for disclosure outweighs the need for secrecy will a court then order the requested disclosure. See Douglas Oil Co., 441 U.S. at 223 ("disclosure is appropriate only in those cases where the need for it outweighs the public interest in secrecy, and that the burden of demonstrating this balance rests upon the private party seeking disclosure"). Because defendant has failed to even satisfy the first step-- setting forth with particularity a compelling need for disclosure-- it is not necessary to engage in any balancing. Moreover, defendant has offered nothing by way of support for the proposition that disclosure outweighs the need for grand jury secrecy and accordingly, has failed to meet his burden at this stage of the analysis as well.
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Doc 47 OCR extract - part 3
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